Estate of Swanzy by Swanzy v. Kryshak
| Decision Date | 11 March 2021 |
| Docket Number | 351649 |
| Parties | ESTATE OF John SWANZY BY Vicki SWANZY, Personal Representative, Plaintiff-Appellee, v. Edward J. KRYSHAK, M.D., Defendant, and Spectrum Health Primary Care Partners, doing business as Spectrum Health Medical Group, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Hoffer & Sheremet, PLC, Grand Rapids (by Stephanie C. Hoffer and Aubri N. Sheremet ) for the estate of John Swanzy.
Foster, Swift, Collins & Smith, PC, Lansing (by Richard C. Kraus ) and Smith Haughey Rice & Roegge, Grand Rapids (by Christopher R. Genther and Ashley C. Quackenbush ) for Spectrum Health Primary Care Partners, doing business as Spectrum Health Medical Group.
Before: Murray, C.J., and M. J. Kelly and Rick, JJ.
M. J. Kelly, J. Defendant Spectrum Health Primary Care Partners, doing business as Spectrum Health Medical Group (Spectrum), appeals by leave granted1 the trial court's order granting partial summary disposition in favor of plaintiff, Vicki Swanzy, the personal representative of the estate of the decedent, John Swanzy. At issue is whether the claims against Spectrum based on the alleged negligence of its employee Robin Zamarron, an unlicensed medical assistant, sound in ordinary negligence or medical malpractice. For the reasons stated in this opinion, we conclude that both claims sound in ordinary negligence, so we affirm.
In June 2016, the decedent was being treated for diabetes by defendant Edward J. Kryshak, M.D. At that time, Dr. Kryshak, an endocrinologist, was employed by Spectrum. According to the amended complaint, before June 2016, the decedent's diabetes had been treated with Humulin R U -500 vials, but during a March 2016 hospitalization, his medication was changed, and Dr. Kryshak opted to continue with the new medication. Subsequently, on June 23, 2016, the decedent's blood-sugar levels were "in the 400s," so he and his wife called his primary-care physician, who allegedly rerouted the call to Dr. Kryshak's office at Spectrum. Thereafter, on June 24, 2016, a Friday, Dr. Kryshak prescribed the decedent Humulin R U -500 Kwikpen.
Because she believed that the Kwikpen would not be immediately available at the pharmacy, the decedent's wife called Dr. Kryshak's office to ask if she could use an old vial of Humulin R U -500. Plaintiff alleges that the decedent's wife spoke on the phone with Zamarron, who "without caution or instruction" said "yes" to the substitution of insulin medications and directed her to administer "100 units." The decedent's wife then drew 100 units of Humulin R U -500 from the vial and administered it to the decedent. Tragically, 100 units of Humulin R U -500 vial is five times as much as 100 units of Humulin R U -500 Kwikpen, and the decedent fell into a hypoglycemic-induced coma and died.
On September 7, 2018, plaintiff filed a complaint against Spectrum and Dr. Kryshak. The complaint was amended on March 1, 2019, after Zamarron was identified as the medical assistant who allegedly gave incorrect dosage and medication-substitution advice. It is undisputed that (1) Zamarron was employed by Spectrum; (2) in her role as a medical assistant she sometimes assisted Dr. Kryshak, including by answering phone calls; and (3) although she is a certified medical assistant, she is not licensed.
Count 1 of plaintiff's amended complaint includes allegations that Spectrum is vicariously liable for Zamarron's negligence in independently giving incorrect insulin substitution and dosage information to the decedent's wife. Count 1 also includes allegations that Spectrum is directly liable for negligently training and supervising Zamarron. In Count 3—which did not include a claim of direct negligence based on improper supervision—plaintiff alleged in the alternative a medical malpractice claim against Spectrum, contending that Zamarron's conduct constituted a breach of the local standard of care for medical professionals. In February 2019, plaintiff moved for partial summary disposition under MCR 2.116(C)(9), arguing that Spectrum's defense to Count 1 failed as a matter of law because the claim sounded in ordinary negligence, not medical malpractice. The trial court denied the motion without prejudice but stated that plaintiff could refile the motion under MCR 2.116(C)(7).
Thereafter, plaintiff filed a renewed motion for partial summary disposition under MCR 2.116(C)(7), (9), and (10), arguing that Count 1 of the complaint sounded in ordinary negligence because Spectrum was not capable of being sued for medical malpractice. Plaintiff contended that under Kuznar v. Raksha Corp. , 481 Mich. 169, 750 N.W.2d 121 (2008), the only individuals or entities capable of medical malpractice are (1) licensed healthcare professionals, (2) licensed health facilities or agencies, or (3) the employees or agents of a licensed health facility or agency. Therefore, because Spectrum admitted that its medical assistants (including Zamarron) were not licensed healthcare professionals and that it was not a licensed health facility or agency, plaintiff argued that there was no entity capable of committing medical malpractice, so the claim necessarily sounded in ordinary negligence. In response, Spectrum asserted that under the definition of "licensed health care professional" in MCL 600.5838a(1)(b), it could be held vicariously liable for the negligent administration of professional services by its employees or agents, which included Zamarron, who was an agent of Dr. Kryshak, who was, in turn, licensed under § 15 of the Public Health Code, MCL 333.1101 et seq. Spectrum relied on Potter v. McLeary , 484 Mich. 397, 402-403, 774 N.W.2d 1 (2009), which held that a professional corporation could be held vicariously liable for the medical malpractice of a licensed healthcare professional that it employed. Spectrum also relied heavily on Estate of Flie v. Oakwood Healthcare, Inc. , unpublished per curiam opinion of the Court of Appeals, issued December 12, 2017 (Docket No. 333389, 2017 WL 6345758 ). In Flie , this Court held that whether a negligent actor was licensed or not was "not necessarily relevant" to determine whether a claim sounded in ordinary negligence or medical malpractice. Id. at 7. Rather, "if an employee is one that provides professional services through [a professional corporation] ..., then the actions of the [professional corporation], and therefore of the employee, are treated as the actions of [a] licensed health care provider, regardless of the employee's licensure." Id. The trial court, however, determined that Potter ’s holding, and Flie ’s holding by extension, only applied to professional corporations, whereas Spectrum was a domestic nonprofit corporation. The court, therefore, granted partial summary disposition in favor of plaintiff.
Spectrum argues that the trial court erred by granting plaintiff's motion for partial summary disposition. We review de novo a trial court's decision on a motion for summary disposition.
Barnard Mfg. Co., Inc. v. Gates Performance Engineering, Inc. , 285 Mich. App. 362, 369, 775 N.W.2d 618 (2009). Likewise, we review de novo whether the nature of a claim asserted sounds in ordinary negligence or medical malpractice. Bryant v. Oakpointe Villa Nursing Ctr., Inc. , 471 Mich. 411, 419, 684 N.W.2d 864 (2004). Because such claims are appropriately raised under MCR 2.116(C)(7), we must consider "all documentary evidence submitted by the parties, accepting as true the contents of the complaint unless affidavits or other appropriate documents specifically contradict it." Id. Our review of a trial court's interpretation of a statute is also de novo. Kuznar , 481 Mich. at 176, 750 N.W.2d 121. De novo review means that we "review the legal issue independently, without deference to the lower court." In re Reliability Plans of Electric Utilities for 2017-2021 , 505 Mich. 97, 118-119, 949 N.W.2d 73 (2020).
When determining whether a claim sounds in ordinary negligence or medical malpractice, a reviewing court must determine: "(1) whether the claim pertains to an action that occurred within the course of a professional relationship; and (2) whether the claim raises questions of medical judgment beyond the realm of common knowledge and experience." Bryant , 471 Mich. at 422, 684 N.W.2d 864. "If both these questions are answered in the affirmative, the action is subject to the procedural and substantive requirements that govern medical malpractice actions." Id. "A professional relationship exists if a person or an entity capable of committing medical malpractice was subject to a contractual duty to render professional health-care services to the plaintiff." Kuznar , 481 Mich. at 177, 750 N.W.2d 121. Because "[a] malpractice action cannot accrue against someone who, or something that, is incapable of malpractice," Adkins v. Annapolis Hosp. , 420 Mich. 87, 95, 360 N.W.2d 150 (1984), a determination of whether a person or entity is capable of malpractice "is a necessary condition for bringing a malpractice suit." Randall v. Mich. High Sch. Athletic Ass'n , 334 Mich. App. 697, 722, 965 N.W.2d 690 (2020) ; see also Bryant , 471 Mich. at 420, 684 N.W.2d 864 (); accord LaFave v. Alliance Healthcare Srvs., Inc. , 331 Mich. App. 726, 731-732, 954 N.W.2d 566 (2020).
" MCL 600.5838a(1) is an accrual statute that indicates when a medical malpractice cause of action accrues." Bryant , 471 Mich. at 420, 684 N.W.2d 864. It provides:
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